BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 244 (Liu)
As Amended March 21, 2013
Hearing date: April 30, 2013
Penal Code
JM:mc
SOLICITING PROSTITUTION FROM A MINOR - MANDATORY 90-DAY JAIL
TERM
HISTORY
Source: Los Angeles City Attorney
Prior Legislation: AB 12 (Swanson) - Ch. 75, Stats. 2011
AB 17 (Swanson) - Ch. 211, Stats. 2009
Support: Los Angeles Police Protective League; Association for
Los Angeles Deputy Sheriffs; Riverside Sheriffs'
Association
Opposition:California Public Defenders Association
KEY ISSUE
SHOULD ANY ADULT CONVICTED OF A PROSTITUTION OFFENSE INVOLVING A
MINOR BE REQUIRED TO SERVE A MINIMUM OF 90 DAYS IN JAIL?
PURPOSE
The purpose of this bill is to require that an adult defendant
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who is convicted of any of the following offenses must serve a
jail term of at least 90 days, including a case in which the
defendant is granted probation: a) soliciting an act of
prostitution from a minor; b) engaging in an act of prostitution
with a minor; or c) soliciting a minor to engage in a lewd or
dissolute act in a public place.
Prostitution Offenses Generally
Existing law provides that any person who solicits, agrees to
engage in, or engages in an act of prostitution is guilty of
misdemeanor.<1> This crime does not occur unless the person
specifically intends to engage in an act of prostitution and
some act is done in furtherance of agreed upon act.
Prostitution includes any lewd act between persons for money or
other consideration. (Pen. Code � 647, subd. (b).)
Existing law provides that any person who solicits another
person to engage in any lewd or dissolute act in a public place
is guilty of a misdemeanor. (Pen. Code � 647, subd. (a).)
Existing law provides that where any person is convicted for a
second prostitution offense, the person shall serve a sentence
of at least 45 days, no part of which can be suspended or
reduced by the court regardless of whether or not the court
grants probation. (Pen. Code � 647, subd. (k).)
Existing law provides that where any person is convicted for a
third prostitution offense, the person shall serve a sentence of
at least 90 days, no part of which can be suspended or reduced
by the court regardless of whether or not the court grants
probation. (Pen. Code � 647, subd. (k).)
Sex Crimes Against or Involving Minors
Existing law defines "unlawful sexual intercourse" as an act of
sexual intercourse accomplished with a person under the age of
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<1> Soliciting or engaging in an act of prostitution is a form
of disorderly conduct. (Pen. Code � 647.)
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18 years. (Pen. Code � 261.5, subd. (a).)
Existing law provides the following penalties for unlawful
sexual intercourse:
Where the defendant is not more than three years older
or three years younger than the minor, the offense is a
misdemeanor.
Where the defendant is more than three years older than
the minor, the offense is an alternate felony-misdemeanor,
punishable by a jail term of up to one year, a fine of up
to $1,000, or both, or by a prison term of 16 months, two
years or three years and a fine of up $10,000.
Where the defendant is at least 21 years of age and the
minor is under the age of 16, the offense is an alternate
felony-misdemeanor, punishable by a jail term of up to one
year, a fine of up to $1,000, or both, or by a prison term
of 16 months, two years or three years and a fine of up
$10,000. (Pen. Code � 261.5, subd (b)-(d).)
Existing law provides that any person who engages in lewd
conduct - any sexually motivated touching or a defined sex act -
with a child under the age of 14 is guilty of a felony,
punishable by a prison term of 3, 6 or 8 years. Where the
offense involves force or coercion, the prison term is 5, 8 or
10 years. (Pen. Code � 288, subd. (b).)
Existing law provides that where any person who engages in lewd
conduct with a child who is 14 or 15 years old, and the person
is at least 10 years older than the child, the person is guilty
of an alternate felony-misdemeanor, punishable by a jail term of
up to one year, a fine of up to $1,000, or both, or by a prison
term of 16 months, two years or three years and a fine of up
$10,000. (Pen. Code � 288, subd. (c)(1).)
Human Trafficking of Minors for Commercial Sex Acts
Existing law provides that any person who deprives or violates
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the personal liberty of another is guilty of human trafficking
if the person specifically intends one of the following to: 1)
effect or maintain a specified felony prostitution related
offense; 2) commit extortion; 3) use a minor to produce or
distribute obscene material or child pornography; or 4) obtain
forced labor or services. (Pen. Code � 236.1, subd. (a)-(c).)
Existing law provides that if the person trafficked is a minor
and the crime involves a commercial sex act, the offense is
punishable as follows:
5, 8 or 12 years in prison and a fine of up to $500,000.
15-years-to-life and a fine of up to $500,000 if the
offense involved force, threats, coercion or deceit, as
specified. (Pen. Code � 236.1, subd. (c).)
Existing law includes these special rules applicable to human
trafficking of a minor:
Whether or not a minor was caused, induced or persuaded
to engage in a commercial sex act depends on the totality
of circumstances, including the relationship between the
victim and the defendant.
Mistake of fact as to the age of the victim is not a
defense.
Consent by a minor to an act underlying a human
trafficking charge is not a defense. (Pen. Code � 236.1,
subd. (d)-(f).)
This bill provides that any adult convicted of a prostitution
offense or soliciting a lewd act in public that involves a minor
must serve a minimum of 90 days in the county jail, regardless
of whether or not the person has been granted probation. The
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court may not absolve the defendant of the minimum term.<2>
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy known as "ROCA" (which
stands for "Receivership/ Overcrowding Crisis Aggravation"), the
Committee held measures which created a new felony, expanded the
scope or penalty of an existing felony, or otherwise increased
the application of a felony in a manner which could exacerbate
the prison overcrowding crisis. Under these principles, ROCA
was applied as a content-neutral, provisional measure necessary
to ensure that the Legislature did not erode progress towards
reducing prison overcrowding by passing legislation which would
increase the prison population. ROCA necessitated many hard and
difficult decisions for the Committee.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
California filed court documents seeking to vacate or modify the
federal court order issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part that the, ". .
. population in the State's 33 prisons has been reduced by over
24,000 inmates since October 2011 when public safety realignment
went into effect, by more than 36,000 inmates compared to the
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<2> Without a specific statutory provision to the contrary,
courts have inherent authority to decline to impose a penalty.
(Pen. Code � 1385; People v. Superior Court (Romero) (1996) 13
Cal.4th 497, 518.)
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2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part that, "California prisons, which currently average 150% of
capacity, and reach as high as 185% of capacity at one prison,
continue to deliver health care that is constitutionally
deficient." In an order dated January 29, 2013, the federal
court granted the state a six-month extension to achieve the
137.5 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered the state of California to
"immediately take all steps necessary to comply with this
Court's . . . Order . . . requiring defendants to reduce overall
prison population to 137.5% design capacity by December 31,
2013."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
whether a bill corrects a constitutional infirmity or
legislative drafting error;
whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and
whether a bill addresses a major area of public safety
or criminal activity for which there is no other
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reasonable, appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
California law allows judges to sentence someone
convicted of soliciting a prostitute to a maximum of
six months in county jail. However, there is no
minimum sentence, and these offenders can be released
from custody after serving little or no time behind
bars.
Those released can include people who solicited
underage prostitutes, who are particularly at risk of
being victimized by adult "johns," pimps, street gangs
and organized crime. Many of the prostitutes are
homeless teens and other vulnerable young people.
A United States Department of Justice study estimates
that more than 300,000 American children are at risk
of being forced into prostitution.
Juvenile prostitution is also linked to human
trafficking. A U.S. State Department report of global
trafficking estimated that minors make up half of
trafficking victims.
Police and prosecutors in Los Angeles have researched
ways to help combat prostitution, assist youth
involved in these cases, and create more deterrents
for johns who prey on juvenile prostitutes. The Los
Angeles City Attorney's Office has recommended
creating a minimum county jail term for people
convicted of this crime.
2. Sex Trafficking of Minors - Estimated Prevalence
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There appears to be general agreement that sex trafficking of
children is increasing and profitable. However, the 2007 Final
Report of the California Alliance to Combat Trafficking and
Slavery Task Force<3> noted that California lacks comprehensive
statistics on human trafficking. Thus, many statistics on human
trafficking in general, and sex trafficking of children in
particular, are estimates. The task force report did cite
statistics from various sources, including a study finding that
80% of documented cases in California occurred in urban areas
and the majority of victims were non-citizens. Approximately
50% of human trafficking cases involved prostitution. A U.S.
State Department report of global trafficking estimated that
minors constituted 50% of trafficking victims. (2007 Alliance
to Combat Trafficking. Final Report, pp. 33-39.<4>)
The Federal Bureau of Investigation (FBI) conducts 24 Innocence
Lost child sexual exploitation task forces and working groups
across the country. Through 2007, 365 cases were opened and 281
child victims were located. The Shared Hope International
non-profit organization has reported that approximately 100,000
domestic minors are sexually trafficked each year.<5> Numerous
examples of trafficking cases were summarized in the California
Alliance Report. In 2001, a Berkeley man was prosecuted for
smuggling 15 girls from India for labor and sexual exploitation.
In 2000, a man was prosecuted for bringing women and girls from
Mexico and forcing them to work as prostitutes in Long Beach.
(2007 Alliance to Combat Trafficking, Final Report, p. 18.)
3. Penalty and Sentencing Considerations
Mandatory Minimum Terms
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<3> The task force was administered by the California Attorney
General's Office.
<4>
http://ag.ca.gov/publications/Human_Trafficking_Final_Report.pdf .
The report includes citations to the each of the studies
quoted in the report.
<5>
http://www.sharedhope.org/Portals/0/Documents/SHI_National_Report
_on_DMST_2009.pdf.
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Setting the penalty, or range of penalties, for a crime is an
inherently legislative function. The Legislature does have the
power to require a minimum term or other specific sentence.
(Keeler v. Superior Court (1970) 2 Cal.3d 619, 631.)
Sentencing, however, is solely a judicial power. (People v.
Tenorio (1970) 3 Cal.3d 89, 90-93; People v. Superior Court
(Fellman) (1976) 59 Cal.App.3d 270, 275.) California law
effectively directs judges to impose an individualized sentence
that fits the crime and the defendant's background, attitude and
record. (Cal. Rules of Court, rules 4.401-4.425.) This bill
limits judicial discretion and requires the same minimum penalty
to be imposed in each case regardless of the facts of the case
and the defendant's record. For example, a defendant who
repeatedly targets pre-pubescent or pubescent prostitutes would
appear substantially more culpable than a defendant with no
criminal record who solicited an act of prostitution from a
17-year-old girl. This bill could provide that a 90-day jail
term shall be imposed unless the court finds reasons to impose
another sentence and states those reasons on the record. The
court could thereby impose a sentence that is appropriate for
each convicted defendant.
Existing penalties for prostitution offenses include mandatory
minimum penalties for recidivists. A person with one prior
conviction must serve a 45-day minimum term. A person with two
prior convictions must serve a 90-day minimum term. As to each
recidivist penalty, the court cannot reduce or stay the term,
including where the defendant is placed on probation.
Background from the author on this bill and material presented
in connection with bills about human trafficking indicate that
prostitution involving minors is a growing problem. If
increasing numbers of defendants are convicted of soliciting
prostitution from minors and given longer sentences, the bill
could have a significant effect on the jail population,
especially in large, urban counties where juvenile prostitution
is relatively common.
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COULD THIS BILL INCREASE OVERCROWDING IN SOME CALIFORNIA COUNTY
JAILS?
SHOULD A COURT HAVE DISCRETION IN AN UNUSUAL CASE AND IN THE
INTERESTS OF JUSTICE TO DEPART FROM THE 90-DAY MINIMUM TERM?
Possible Deterrent Effect of This Bill
It has been argued that increased penalties will deter crime.
This bill requires a minimum jail term of 90 days for any person
convicted of a prostitution offense involving a minor. The
deterrent value of the bill is basically dependent on 1)
potential perpetrators knowing about the minimum jail term
required by this bill, and 2) those persons deciding not to
solicit minors for acts of prostitution because of the minimum
sanctions.
Arguably, one can only speculate whether or not potential
perpetrators would learn of the minimum jail term that would be
imposed under this bill. Further, arguably one can only
speculate whether such knowledge would induce the person to
avoid soliciting juvenile prostitutes.
Committee staff is not aware of any data about the deterrent
value of the mandatory minimum penalties for recidivist
prostitution offenders in existing law. Arguably, the mandatory
minimum penalties in existing law serve a mostly punitive
function, since by definition the penalties only apply to
offenders who were not deterred from committing subsequent
prostitution offenses on at least one or two occasions.
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A study<6> in 2002 in the Western Criminology Review of a now
defunct first-offender program in Portland (SEEP) found very low
recidivism rates for all prostitution arrestees regardless of
whether they were referred to SEEP and participated, were
referred to SEEP but did not attend, or were not referred to the
program. The study considered only a two-year period and a
relatively small number of offenders. The researchers inferred
from the data that an arrest, per se, could have deterred
offender, as prostitution offenses involve significant shame.
Prostitution thus may be subject to specific deterrence. The
authors, however, also questioned if the offenders continued to
solicit prostitutes, and simply learned how to avoid arrest.
They could not say whether the education from the SEEP program
would have led the participants to a avoid prostitution for a
substantial time in the future.
DOES RESEARCH INDICATE THAT AN ARREST, PER SE, MAY BE A
SUBSTANTIAL DETERRENT FOR MEN WHO SOLICIT PROSTITUTES?
IS THERE DATA ABOUT THE EFFECT OF MANDATORY MINIMUM PENALTIES IN
EXISTING LAW FOR REPEAT OFFENDERS?
Defendants Required to Serve a 90-Day Minimum Jail Term as a
Condition of Probation May be Likely to Refuse Probation
This bill requires the 90-day minimum jail term to be imposed
regardless of whether or not the defendant was placed on
probation. Many, if not most, county jails are crowded,
particularly in urban areas. A defendant who is convicted of a
prostitution offense in a county with crowded jail conditions
would very likely refuse probation because he would know that he
would not serve more than 90 days upon a straight sentence
without probation.
A defendant who is not on probation cannot be monitored by the
probation department or the court. A defendant who is not on
probation cannot be ordered to engage in rehabilitative or
restorative justice programs. Many of these defendants might
continue to solicit juvenile prostitutes. If the odds of
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<6> http://wcr.sonoma.edu/v3n2/monto.html.
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getting caught committing such a crime is low, and that may be
likely, such a person could remain a significant source of
demand for juvenile prostitution.
WOULD DEFENDANTS CONVICTED OF PROSTITUTION INVOLVING A MINOR IN
COUNTIES WITH CROWDED JAIL CONDITIONS LIKELY REFUSE PROBATION IF
THE JAIL TERM FOR A CONDITION OF PROBATION WOULD BE SIMILAR TO
AN EXECUTED JAIL SENTENCE?
4. Special Prostitution Diversion and Probation Programs
A number of cities around the country have adopted special
first-offender prostitution diversion programs that educate men
arrested for soliciting an act of prostitution about the harms
caused by or attendant to the commercial sex trade. The San
Francisco program - First Offender Prostitution Program (FOPP) -
was one of the first of these programs. The program requires
men arrested for the first time for a prostitution offense to
attend a one-day course of the harms caused or exacerbated by
the demand for prostitution. Men who complete the course are
diverted out of the criminal justice system. <7>
A report on the San Francisco FOPP conducted by Abt Associates
concluded that program was well run and effective. The program
educated participants about the risk of harm to prostitution
customers, such as robbery, reinforcement of sexually compulsive
behaviors and sexually transmitted diseases (STD). The course
also examined the negative consequences for prostitutes, such as
drug abuse, STDs and other health problems, criminal
convictions, exploitation by pimps, rape and other violence and
harm to the community. The Abt report found a sharp drop in
recidivism attributable to the program.<8>
The claims of a sharp drop in recidivism in the Abt report have
been criticized and questioned. One study by researchers from
DePaul University and American University found methodological
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<7> http://sagesf.org/first-offender-prostitution-program-fopp.
<8> https://www.ncjrs.gov/pdffiles1/nij/grants/222451.pdf.
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flaws in the Abt report.<9> The study from the Western
Criminology Review (noted above) found that recidivism rates
attributable to FOPP programs are difficult to measure, as johns
arrested for prostitution offenses can easily learn how to avoid
arrest. Further, the increasing shift of prostitution to the
Internet makes it difficult to measure recidivism.<10>
5. Mandatory 90-Day Term Would Apply Regardless of Whether or not
the Defendant Knew
Or Should Have Known that the Prostitute Involved in the
Incident was a Minor
The bill does not appear to require that the defendant knew, or
should have known, that the prostitute involved in the incident
was a minor. A 16 or 17-year-old minor acting as a prostitute
could appear to be an adult. In such circumstances, it cannot
be said that the defendant intended to exploit minors or knew
that he was exploiting a minor for sexual services. Further,
representatives of the sponsor have noted that a large
proportion of juveniles placed into prostitution are around 12
or 13 years old. An adult would clearly know that a 12-year
prostitute was not an adult.
SHOULD A LAW REQUIRING A MINIMUM SENTENCE OF 90-DAYS FOR AN
ADULT CONVICTED OF PROSTITUTION INVOLVING A MINOR INCLUDE AN
ELEMENT THAT THE ADULT KNEW OR SHOULD HAVE KNOWN THAT THE OTHER
PERSON WAS A MINOR?
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<9>
http://rightswork.org/wp-content/uploads/2012/09/John-Schools.Lov
ell.Jordan.7.12.pdf.
<10> http://wcr.sonoma.edu/v3n2/monto.html.